PICKREN & MARES

[2014] FamCA 496

FAMILY COURT OF AUSTRALIA

PICKREN & MARES [2014] FamCA 496

FAMILY LAW – CHILDREN – Best interests – Where there is one child of the relationship – Where it is agreed that the parents will have equal shared parental responsibility for the child – Where the child currently lives in an equal time arrangement – Where the mother and the Independent Children’s Lawyer seek that the child primarily live with the mother and spend four nights a fortnight with the father – Where the father seeks as his primary position that the child live with mother and that his time with the father be as agreed between the parties – Where in the alternative the father seeks an equal time arrangement – Where communication between the parents is burdensome and dysfunctional – Where the child has expressed a desire to spend additional time with the mother – Where the Family Consultant said the Court should place some weight on the child’s wishes – Where it is not in the child’s best interests to continue the equal time arrangement – Where substantial and significant time would be in the child’s best interests and reasonably practicable – Orders made for the parents to have equal shared responsibility for the child – Orders made for the child to live primarily with the mother and spend four nights a fortnight with the father – Orders made for the child to live for one half of each school holiday period with each parent.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) s 45

Briginshaw v Briginshaw (1938) 60 CLR 336
Champness & Hanson (2009) FLC 93-407
G & C [2006] FamCA 994
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

APPLICANT: Ms Pickren

RESPONDENT: Mr Mares

INDEPENDENT CHILDREN’S LAWYER: Eleanor Canning

FILE NUMBER: PAC 2223 of 2011

DATE DELIVERED: 10 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Loughnan J

HEARING DATE: 20 – 22 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Suzanne Christie
SOLICITOR FOR THE APPLICANT:	Shepherds The Family Law Specialists
RESPONDENT FATHER:	In Person

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Clyllyn Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Elanor Canning

Orders

(1)The parties shall have equal shared parental responsibility for the child B born … 2005, (“the child”).

(2)During school term the child shall live primarily with the mother. The child shall live with the father each alternate weekend commencing on the first Thursday of school term after the making of these orders, from after school Thursday to 5.00 pm Sunday and in each other week from after school Thursday to before school Friday.

(3)Thereafter, as prescribed by Order 4, where the child lives with the father in the second half of the school holidays, he shall resume the pattern in Order 2 in the following school term. Where the child lives with the father in the first half of the school holidays, he shall commence his time with the father in the first week of the following school term with Thursday to before school Friday with the pattern in Order 2 continuing therefrom.

(4)During school holidays the child shall live for one half of each school holiday period with each parent at such times as are agreed by the mother and father and in the absence of agreement, the child shall live with the father in the second half of school holiday periods commencing in an even numbered year, and in the first half of the school holidays periods commencing in an odd numbered year.

(5)For the purpose of Order 4:

a)School holidays are deemed to commence at 3.00 pm on the last day of the preceding school term and finish at 9.00 am on the first day of the school term on which the child is required to attend school (that is school holidays shall include pupil free days); and

b)Unless the parties otherwise agree, in school holidays containing an even number of days, the parent with whom the child is living for the first half of the holidays will deliver the child to the home of the other parent at 6.00 pm on the last day of the first half of the holidays and in school holidays with an odd number of days that parent will deliver the child to the home of the other parent at 6.00 pm on the middle day of the holidays.

(6)Those living arrangements are varied in the following circumstances:

a)In the event that Father’s Day falls on a weekend when the child is living with the mother otherwise pursuant to these orders the child shall spend time with the father from 5.00 pm Saturday (when the father shall collect the child from the mother’s residence) until 5.00 pm Sunday (when the father shall deliver the child to the mother’s residence);

b)In the event that Mother’s Day falls on a weekend when the child is living with the father otherwise pursuant to these orders the child’s period with the father on such weekend shall terminate at 5.00 pm Saturday (when the father shall deliver the child to the mothers residence);

c)The child shall spend time with the father from 5.00 pm 24 December to 5.00 pm 25 December each year and shall spend time with the mother from 5.00 pm 25 December to 5.00 pm 26 December each year.

(7)The parties shall communicate via e-mail regarding any provision in these Orders; except in the case of an emergency or an unforseen event, where the parties are permitted to communicate via SMS messaging.

(8)The mother shall keep the father informed as soon as practicable of:

a)Any significant medical problems or illness suffered by the child while in her care;

b)Any attendance by the child on a medical practitioner (including the nature of the illness or injury and the proposed treatment);

c)Any occasion that the child is due to be hospitalised or has been hospitalised;

d)Any medication prescribed for the child;

e)Any medication that will require the Father to administer such medication; and

f)Any change to the mother’s address and telephone contact numbers and the mother’s e-mail address.

(9)That the father is to keep the mother informed as soon as practicable of:

a)Any significant medical problems or illness suffered by the child while in his care;

b)Any attendance by the child on a medical practitioner while in his care (including the nature of the illness or injury and the proposed treatment);

c)Any occasion that the child is due to be hospitalised or has been hospitalised;

d)Any medication prescribed for the child;

e)Any medication that will require the Mother to administer such medication; and

f)Any change to the father’s address, the father’s telephone contact numbers and the father’s e-mail address.

(10)The Court requested that if practicable, Family Consultant Ms A or the nominee of the Manager of Child Dispute Services at Parramatta, explain the final orders to the child. The parties shall comply with any request made by Ms A or the Manager’s nominee in order to facilitate that explanation. The Court noted that the communications with the parents in relation to the explanation are at the discretion of the Family Consultant.

(11)Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

(12)Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Pickren & Mares has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:  PAC2223 of 2011

Ms Pickren

Applicant

And

Mr Mares

Respondent

REASONS FOR JUDGMENT

Introduction

1.These are parenting proceedings concerning B, (“the child”) who was born in 2005 and at the time of the hearing, was nine years of age. The proceedings are of very narrow compass. It is agreed that the parents will have equal shared parental responsibility. The main issue involves the living arrangements for the child. The mother would like the child to live with her for more time than with the father. The father seeks as his primary position that an order is made specifying that the child live with the mother and that his time with the father be as agreed between the parents – effectively leaving that issue at the discretion of the mother. As a fall-back position, in the event that the Court did not find in favour of his primary application, the father sought the continuation of the current equal time arrangement.

Applications

2.The applicant mother sought the following orders in her Case Outline document dated 6 May 2014:

a)The parties have equal shared parental responsibility for [the child].

b)[The child] live with the mother.

c)[The child] spend time with the father each alternate weekend during school term from after school Thursday to Sunday 5pm, and in each other week from after school Thursday to before school Friday. Also for one half of each school holiday period and at times on special days.

3.In the course of his final submissions and for the first time during the hearing, the father explained that his preferred option was that the child live with the mother and that his time with the father be as agreed between the parents. The father sought the equal time arrangement referred to in his written submissions, only as a fall-back position. The fall-back proposal identified in the father’s Case Outline filed 19 May 2014 is as follows:

a)The parties have equal shared parental responsibility for [the child].

b)[The child] live on a week-about basis with each parent, with changeover occurring Friday after school.

c)During school holidays, [the child] spend one half of the holidays with each parent.

d)If either parent is unable to spend time with [the child] during time that [the child] is in their care, they shall offer care of [the child] to the other parent (first right of refusal).

e)The parties by agreement share special days in [the child’s] life.

f)The parties be restrained from having [the child] attend upon a psychologist, psychiatrist, therapist, counsellor or other treating professional without the knowledge and consent of the other party firstly obtained, except in event of an emergency.

g)Parties advise each other as soon as reasonably practicable of [the child] attending upon any medical practitioner or health professional whilst in their care and facilitate contact between such professional and the other parent.

h)Parties keep each other advised when [the child] is not to attend school as soon as reasonably practicable.

4.The Independent Children’s Lawyer’s proposals were set out in a document submitted during final submissions on 22 May 2014 (exhibit 14). The ICL sought:

(reproduced as original)

Parental Responsibility

1That the mother [Ms Pickren] (the “Mother”) and the father [Mr Mares] (the “Father”) have equal shared parental responsibility for [the child] born … 2005 (“the child”).

Time with Each Parent

2That the child live with the Father as follows:

During School Terms

2.1From after school Friday until the following Monday before school every second weekend, the first such period to commence on the first Friday of each school term PROVIDED THAT if the Monday is a public holiday or pupil free day such period be extended to 3pm on that day.

2.2From 3pm until 7.30 pm every second Monday being the period immediately after the time referred to in Order 2.1 PROVIDED THAT the Father shall take [the child] to his after school activity on that day and return him to the Mothers residence at the completion of that activity.

2.3From 3pm every other Monday during school term until before school on Tuesday the following day (or 9am to the Mothers residence if the Tuesday is a public holiday or pupil free day).

2.4Such other times and alternate times during school terms as agreed by the Mother and Father.

2.5For the purpose of order 2.1-2.3 such times only occur during school terms and not during any school holiday period.

School holidays

2.6For one half of each school holiday period at such times as agreed by the Mother and the Father and in the absence of agreement, the child shall live with the Father during that period for the second half of school holiday periods commencing in an even numbered year, and in the first half of the school holidays periods commencing in an odd numbered year.

2.7For the purpose of these orders school holidays are deemed to commence at 3.00 pm on the last day of the preceding school terms and finish at 9.00 am on the first day of the school term on which the child is required to attend school (that is school holidays shall include pupil free days).

3That the child otherwise live [with] the Mother.

4That in addition to the periods referred to above the child spend time with each parent as follows:

Fathers Day

4.1In the even that Fathers Day falls on a weekend when the child is living with the Mother otherwise pursuant to these orders the child shall spend time with the Father from 5.00 pm Saturday (when the father shall collect the child from the Mothers residence) until 5.00 pm Sunday (when the Father shall deliver the child to the mothers residence).

Mothers Day

4.2In the event that Mothers Day falls on a weekend when the child is living with the Father otherwise pursuant to these orders the child’s period with the Father on such weekend shall terminate at 5.00 pm Saturday (when the Father shall deliver the child to the Mothers residence).

24 – 26 December

4.3The child shall spend time with the father from 5.00 pm 24 December each year to 5.00 pm 25 December and shall spend time with the Mother from 5.00 pm 25 December to 5.00 pm 26 December.

4.4The child spend time with the Mother and Father on such other days and times as agreed between the Mother and Father.

Other Orders

5That the Mother is to keep the Father informed as soon as practicable of:

5.1any significant medical problems or illness suffered by the child while in her care;

5.2any attendance by the child on a medical practitioner (including the nature of the illness or injury and the proposed treatment:

5.3any occasion that the child is due to be hospitalised or has been hospitalised;

5.4any medication prescribed for the child;

5.5any medication that will require the Father to administer such medication;

5.6any change to the Mother’s address and telephone contact numbers and the Mother’s E-Mail address.

6That the Father is to keep the Mother informed as soon as practicable of:

6.1any significant medical problems or illness suffered by the child while in his care;

6.2any attendance by the child on a medical practitioner while in his care:

6.3any occasion that the child is due to be hospitalised or has been hospitalised;

6.4any medication prescribed for the child;

6.5any medication that will require the Mother to administer such medication;

6.6any change to the Fathers address, the Father’s telephone contact numbers and the Father’s E-Mail address;

7That the parties are to communicate via E-Mail regarding any provision in these Orders; except in the case of an emergency or an unforseen event, where the parties are permitted to communicate via SMS messaging.

Written Evidence

5.The applicant relied on:

·Response to Initiating Application filed 23 January 2014; and

·Affidavit of the father filed 23 January 2014.

6.The respondent relied on:

·Minute of Orders Sought (as detailed in Case Outline) dated 6 May 2014; and

·Affidavit of the mother sworn 2 May 2014.

Expert Evidence

7.The following expert evidence was relied on:

·Family Report of Family Consultant Ms A dated 9 May 2013.

·Child Responsive Program Memorandum of Family Consultant Ms A dated 6 November 2012.

·A report of Dr T prepared in late 2013 and received by the Court on 7 November 2013.

The Hearing

8.The hearing commenced on 20 May 2013. The report of the single expert family consultant was 12 months old and with the cooperation of the parents, arrangements were made during the trial for the expert to see the child and be brought up to date with the latest written evidence. On 22 May 2014 judgment was reserved.

Short History

9.The father was born in 1963. As at the date of the hearing he was 50 years of age. The mother was born in 1969. As at the date of the hearing she was 45 years of age. The parents met in late 2001, married in November 2002 and separated on 6 April 2010. The child was born in 2005.

Credibility and Submissions

10.It was concerning that at the very end of the trial, the father for the first time announced that he no longer pressed for the continuation of the equal time arrangement but sought an order that his time with the child would be by arrangement between the parents – effectively leaving that issue at the mother’s discretion. In response to my expressed concerns about that change, the father told me that he had held a similar opinion early in the litigation and had so instructed his former solicitors. Therefore this was not a recent or sudden decision.

11.A difficult aspect of the case is that the parents’ evidence seems inconsistent with the orders they seek. Each of them is highly critical of the other in virtually every aspect. The mother contends that she and the child have been afraid of the father and of his reactions on occasions. The father asserts that the mother was psychologically abusive towards him and neglectful of the child. That makes it difficult to understand a dispute that until the change in the father’s case, turned only on whether the boy should live for the same time with each parent or for more time with the mother. Each of the parties was asked about that during their evidence. In summary, the mother responded to the effect that she sought a change because the boy said he is having difficulty being away from her for a week at a time and that is also her independent view. The father’s response was to the effect that the risk of abuse and neglect by the mother and the fact of what the father sees as the mother’s immature relationship with the child is balanced by his love for his mother.

12.The parties seem very different in personality, they do not trust each other and struggle to understand each other. That has contributed to a highly conflictive relationship but one in which the father usually prevails. For example, the father agreed with the characterisation that when he proposed something, the mother did not agree but he usually got his way.

13.I did not detect any attempt by either party to mislead the Court. To my observation their different versions of events result from them seeing the world from very different perspectives and interpreting events and interactions very differently.

14.Ms A gave evidence as an expert and her credit was not challenged. Indeed, there was no significant challenge to her opinions.

Background Facts

15.The parties married in November 2002.

16.In 2005 the parties’ only child, B was born.

17.The mother took approximately one year maternity leave when the child was born. She returned to work in April 2006 and undertook postgraduate studies by correspondence while working.

18.The father did not have paid employment from mid-2005 when he was made redundant, until after separation. The father undertook studies for a master’s degree during that time.

19.The father alleges the mother was depressed when the child was born and at the commencement of their marriage. The father alleges that from 2006 the mother took medication for depression. The mother conceded that she suffered a mild depression and that she was medicated for it.

20.From 2007, the child attended long day care for five days each week.

21.The mother alleges that the father was depressed in 2008/2009. The father agrees that at one point he was diagnosed with depression and was medicated for it.

22.The father alleges that in January 2009 the parties separated briefly when the mother left the former matrimonial home with the child and went to live at her parents’ home. The father alleges this was only for a few days. It is neither possible nor necessary to resolve that dispute.

23.In 2010 the child commenced primary school at C School.

24.The mother alleges that in early 2010, the father was prone to yelling in the presence of the child. She also alleges that the father smacked the child. The father agreed that he smacked the child on occasions during cohabitation and gave evidence of hitting him lightly on the hand on a few occasions thereafter.

25.On 6 April 2010 the parties separated on a final basis. The mother and the child moved out of the former matrimonial home at Suburb D and commenced living with her parents in Suburb E. The father remained living in the former matrimonial home. The father did not see the child for six months following separation.

26.The mother deposes to calling the police on 6 April 2010 because of her fear of the father’s escalating behaviours.

27.In September 2010 the child commenced spending overnight time with the father.

28.From late 2010 the child began seeing his father on a week-about basis and that arrangement continued thereafter.

29.In August 2011 the parties were divorced.

30.On 4 November 2011 the mother commenced proceedings for property orders in the Federal Magistrates Court, as the Federal Circuit Court was then known.

31.On 19 April 2012 the father filed an Amended Response whereby he sought parenting orders.

32.On 26 July 2012 final property orders were made by consent.

33.In December 2012 the mother purchased a home in Suburb F where she and the child currently reside.

34.On 14 May 2013 the matter came before Johnston J for the first day of the trial. Orders were made by consent for the child to attend upon a paediatrician (Dr T) to be assessed in respect of a possible autism spectrum disorder. Orders were also made restraining the father from physically disciplining or shouting at the child.

35.At the time of the hearing the child lived in a week-about arrangement with each of his parents. He does gymnastics at Suburb G after school on Monday, Wednesday and Friday, plays a musical instrument and has swimming lessons on Saturday mornings.

The Expert Evidence

36.The single expert social worker is Ms A. Ms A has bachelor degrees in Arts and Social Work and a masters degree in Social Work from the University of New South Wales. She has worked as a Family Relationships Counsellor since 1999 and as a Family Consultant at this Court since 2009.

37.Ms A interviewed the relevant adults and children for the purposes of preparing a Child and Parent Issues Assessment dated 6 November 2012. For the purposes of her family report of 9 May 2013, Ms A interviewed members of the family on 19 April 2013.

38.Both parents said that they had suffered depression and had been prescribed medication for that condition.

39.Ms A reported the father’s view that his active involvement in an equal time arrangement was necessary to hold the relationship between the child and his mother together. She put to the father the child’s comment that a week with the father was too long and that he wanted more time with his mother. The father acknowledged that and said that when the child is older, he would give him “whatever flexibility was needed”.

40.Ms A recommended a change to the current arrangement whereby the child lives mainly with the mother and for up to four nights a fortnight with the father. She recommended certainty over an unstructured arrangement. Ms A’s recommendations are largely consistent with the proposals of the ICL and the mother. They are inconsistent with the father’s proposals albeit that Ms A did not have an opportunity to consider the ultimate proposals put by the father. Ms A was not cross-examined by the father.

41.Dr T is a paediatrician and prepared a report on the joint instructions of the parties and pursuant to an order made on 14 May 2013. His report addressed the fact that the child exhibited characteristics similar to children on the autism spectrum. Dr T met with the family on 15 August 2013 and his report was received on 7 November 2013.

42.Dr T observed that the child is a bright child with many natural talents. In Dr T’s opinion, the child does not fall within the autism spectrum, but a number of aspects of his behaviour, which are quirky and eccentric, are similar to characteristics of persons on the spectrum. Dr T also noticed the child’s anxiety and stress appear to have increased at times of unexpected parental separation and a prolonged absence from his father. He has a strong family history of disposition to anxiety, which will continue to need management from time to time.

43.Dr T reported that the key test, especially in bright children is their capacity to continue to maintain healthy peer relationships as they move into the latter part of primary schooling. Success in that regard requires an increasing capacity to understand the needs of others and to engage in reciprocal conversation, rather than a continuous monologue of self-interested discussion. Dr T said that such success requires a capacity for conflict resolution and to share and play together with others for enjoyment. Dr T observed that the child was only just reaching that level of social expectation and was interested in how he would negotiate those challenges over the next few years.

44.Dr T did not consider that the child needed to be reviewed in the future unless further concerns are raised.

The Legislation

45.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

46.Section 60B sets out the objects of the Part and the principles underlying those objects. Relevantly the section provides:

(1)The objects of this Part are to ensure that the best interests of children are met by:

(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)     parents should agree about the future parenting of their children; and

(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

47.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child is the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.

48.The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted.

49.If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, an order for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.

50.The way in which parenting issues are decided has been discussed in a number of cases. The High Court has provided guidance and different approaches have been adopted and have survived intermediate appellate attention. For the purposes of the determination of these proceedings, I will adopt the following approach:

a)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;

b)where possible and relevant, consider and make findings about matters set out in s 60CC;

c)consider and make findings about parental responsibility, including considering the presumption in s 61DA;

d)apply s 65DAA if relevant and assess the proposals in light of that provision;

e)if 65DAA is not relevant, assess the proposals against the best interests criterion;

f)consider and make findings about living arrangements; and

g)make orders.

The Parties’ Proposals

51.It is agreed that the parents will have equal shared parental responsibility for the child. 

52.The ICL proposes that the child live mainly with the mother and with the father for alternate weekends (Friday to Monday) and for one evening each week, extending overnight once a fortnight.

53.On the primary positions of the parties, it is agreed that the child will live with the mother, with the ICL and the mother arguing that he spend about four nights a week with the father and with the father arguing that his time with the child should be as agreed between the parents. Under the father’s fall-back position, the main dispute seems to be whether the current week about arrangement continues or whether the child lives for more time with his mother. The father would also like to retain the current flexible arrangement for special days and the mother would like them to be settled by Court order.

Section 60CC Considerations

54.As with some other provisions of Act, s 60CC was amended with effect from 7 June 2012 but only for new proceedings.[1] As the legislation related to these proceedings section 60CC specified the following considerations:

[1] Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 (Cth) - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”

Primary considerations:

(2) (a) the benefit to the child of having a meaningful relationship with both of the child's parents

55.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[2] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

[2] McCall & Clark (2009) FLC 93-405

56.The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]

[3] Champness & Hanson (2009) FLC 93-407

57.It is common ground that the parents should have equal shared parental responsibility for the child and that he should live with each of them overnight and for significant periods. It follows that the parties consider that there is meaning in the relationships between each of them and the child and that those relationships are important. The orders under consideration would promote those relationships.

58.In final submissions the father sought to distinguish between the idea of a meaningful relationship with both parents and such a relationship with each parent individually. He submitted that the child wants a good relationship with both parents and he wants peace. Importantly, the father submitted that such an outcome is impossible. It was at least in part, on the basis of that reasoning, as I understand it, that the father announced his changed position on the last day of the trial. I am not sure how the orders ultimately proposed by the father would better achieve his stated aims.

(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

59.‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings s 4 of the Act included the following definitions:

"abuse", in relation to a child, means:

(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.

"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

60.There are no allegations about sexual abuse.

61.The mother alleges that the father struck the child. The father conceded that he had done so in the past and referred to an incident where he had ‘clipped [the child] on the hand’ as he was playing with his food.

62.Neither of the parents seeks orders to restrain such conduct. During final submissions I said that I understood that there are no current concerns that give rise to issues under this criterion. Ms Christie for the mother emphasised that despite the lack of restraining orders sought by her client, the mother did have a concern about physical and psychological abuse, noting among other things that a restraint on physical chastisement had been imposed on the father by way of interim order in these proceedings.

63.The mother’s counsel also referred to the evidence about the child expressing fear of his father.

64.The mother has an impossible case to argue on this point. On her preferred outcome the child would be exposed to his fears of the father and the risk of physical and psychological abuse for four nights a fortnight. The father’s proposal that the time be left to the mother would allow the mother to limit the time and to fix conditions. Indeed, it would allow the mother to put in place the arrangement she seeks.

65.It follows that the parents agree that the child will be safe in either household.

Additional considerations

(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

66.In her report of 9 May 2013 Ms A recorded that the child expressed a wish to change the equal time arrangement and to live mainly with his mother. Ms A, however, did not consider that at nearly eight years of age, his stated wishes should be given much weight.

67.The mother deposed that the child has told her several times that he is scared of the father. She could not recall exactly when the child said this and did not tell the child that there was no reason to be scared of the father.

68.Arrangements were made for Ms A to speak to the child on 20 May 2014. Ms A reported that the child gave inconsistent answers in relation to his wishes – nominating both more time with the mother and leaving the week about arrangement in place. He told Ms A that he would feel fine if the current arrangement stayed in place, very sad if he lived mainly with Dad and quite sad if he lived primarily with Mum. Thereafter the child broke down and told Ms A that he would like to spend more time with his mother.

69.Ms A considered that at nine years of age, some weight should be placed on the child’s views.

70.The fact that the child broke down suggests that he feels caught in the middle of his parent’s conflict. That would suggest a reason for discounting his expressed views as he is likely to be trying to protect his parents rather than focussing on what he wants.

71.Ms A put to the father, the child’s comment that a week with the father was too long and that he wanted more time with his mother. The father acknowledged that and said that when the child is older, he would give him “whatever flexibility was needed”. The father gave moving evidence about the child’s greatest wish being a reconciliation between the parents and in his view, the child’s expressed wish to leave things as they are, is secondary to that hope.

72.The child is nine years of age. He is bright and loving. Despite their undoubted love for him, his parents have been unable to protect him from their conflict and personal hurt. I accept that the child’s wish is that ultimately expressed to Ms A, that he continue to spend time with both parents but that he live for a greater proportion of the time with his mother. However, he is a young boy who has been caught in the middle of the breakdown of his parents’ relationship, a breakdown that has been extremely difficult for them. He has tried to take responsibility for his parents and therefore care is needed before simply accepting his expressed wishes at face value.

(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);

73.The child told Ms A that his mother is helpful and kind and that she gave him nice food for lunch. His mother allowed him to play computer games a bit more often (than the father did). He could not think of anything the mother could change to be the best mother she could be. However, the child told Ms A that the mother criticises the father to him – “Mummy says that daddy is a bad person and she can prove it.”

74.The child told Ms A that he enjoyed spending time with the father when the father took him to activities such as a recent “holiday fun science thing”. He said about his father “sometimes kids and sometimes mean”. He reported that his father shouted at him more than his mother did. He complained about his father teaching him to change his pronunciation of words. The child complained that the father used the computer for too long and caused him to be late for school some of the time.

75.The child told Ms A that the father does not criticise the mother to him. “Daddy says he loves Mummy”. The child was asked about that and told Ms A that he was “annoyed, angry and upset” about that. He noted that the father behaved oddly around the mother – “he tries to get overacted”. As to the observation that the child became annoyed etc, the mother deposed[4] that in January 2014 the child said to her: “I don’t know who to believe. There’s two different stories about why you divorced and live separately. Dad says it’s all your fault that you are not together. Dad says there’s something wrong with you.” If true, that suggests that like the mother, the father too has discussed the breakdown of the parents’ relationship with the child and has assigned fault to the mother.

[4] Paragraph 52 of the mother’s affidavit

76.In her oral evidence Ms A said in effect that the child has a more comfortable time with his mother. The totality of the evidence supports that conclusion. There is no doubt that both parents would like the child to succeed in all areas of his life and they both place appropriate limits on him, but it is the father who presses for more extracurricular activities, it is the father who places greater demands on homework, on music practice etc. Indeed as I understood the father’s case those are matters that he sees as advantages of his time with the boy. There are also the rather unusual features of his conduct such as photographing the boy’s lunch and late notes, in the presence of the child.

(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

77.The mother concedes that she has denigrated the father to the child. In her updating evidence[5] the mother asserted that she apologised to the child for that conduct and told him that she would not do that in future. Notwithstanding that evidence, it is of concern that the mother did not have the insight to know that her conduct was harmful. Despite the recent evidence, I am left unsure as to whether the mother could take the next step and promote the father to the child. She baldly describes occasions from 2012 and 2013 where the child said something critical of the father which the mother knew to be unfair and unwarranted. For example, the mother allowed the child to sheet home to the father the decision to have the child take up his musical instrument[6]. The mother agreed in cross-examination that the ultimate decision was made by the music teachers at school and that the parents’ input to the selection of a musical instrument was communicated to the school in a document prepared by her, without consultation with the father. The mother could not explain why, in those circumstances, she did not challenge the child on his statement: “Dad made me choose it”. Similarly, the mother accepted in cross-examination that the father had never insisted that the child practice the musical instrument for more than a few minutes at a time. Why then did she not challenge the child when he said to her[7]: “He makes me play the [musical instrument] for hours on end”? On the other hand the father accepted the generalisation put to him by the mother’s counsel that where he made a proposal and the mother did not agree or prevaricated, he ultimately got his way.

[5] Exhibit 4

[6] Paragraph 44 of the mother’s affidavit

[7] Paragraph 51 of the mother’s affidavit

78.In her May 2013 report Ms A recorded that the child said that his father did not criticise the mother. However, the mother deposed[8] that in January 2014 the child said to her: “I don’t know who to believe. There’s two different stories about why you divorced and live separately. Dad says it’s all your fault that you are not together. Dad says there’s something wrong with you.” That suggests that both parents have discussed the breakdown of their marriage with the child and have sought to blame the other parent.

[8] Paragraph 52 of the mother’s affidavit

(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

79.Although the father gave evidence that he had said goodbye to the boy before the commencement of the hearing, the range of dispute between the parties does not involve the child being removed from either parent for long periods.

80.Ms A recommended that arrangements be planned and predictable where possible. She noted that the communication problems of the parents are not so much that their discourse is abusive or violent but that it is arduous, particularly for the mother.

81.For that reason Ms A favoured a fixed arrangement for special days – a routine for the child that changes little. Importantly, the father was taken through the mother’s proposals for special days and agreed with the thrust of those proposals. Ms A thought that the child could cope with half the school holidays with the father and for block periods with him if the mother needs to travel for work.

(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

82.The difficulties for the child are largely psychological rather than practical.

83.As to practical matters, the child attends a gymnasium at Suburb G. Both parents want that to continue although the mother is concerned that the travel (something like an hour each way) interferes with the child’s school week and prevents him getting enough sleep. The arrangement is only viable because the father does most of the driving. The father says he is looking for part time work that would allow him to continue to provide that support but conceded that it would not be feasible if he had a full time position. In any event the mother would like to review the arrangement at the end of 2014.

(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

84.Although the parents are very critical of each other, the range of dispute does not include proposals for supervision or the restriction of either parent’s time with the child to days only. On his primary or secondary proposals, the father wants the child to be in the mother’s care for at least half the time. The mother wants the father’s time reduced but still seeks that it be overnight and for multiple nights each fortnight. The necessary inference is that, despite their extensive concerns, each of the parents is seen by the other as being capable of providing for the child’s needs.

85.There is evidence that the judgment of each of the parents has miscarried on occasions. On a recent occasion the mother found out about a special assembly at the child’s school on the morning of the assembly. She attended and arranged for her father to attend. She did not notify the father and could not give a sensible reason why not. She said she thought that he already knew. The more likely reason is that the mother did not think it was important that the father attend or that she does not like contacting the father, particularly where the communication could result in some criticism of her. On reflection the mother might have made a different decision in those circumstances.

86.The father said that he reversed his agreement to allow the child to attend a cousin’s birthday party on his weekend because the mother had not informed him about the assembly. He accepted that the mother did not find out about the assembly until the morning of the assembly. Asked why he did that, the father said something like – he knew from his research or study or understanding about negotiations in business that you cooperate while the other party cooperates but when the other party ceases to cooperate you do the same. In re-examination the father made the point that the boy had a great day with the father as a result of not attending the cousin’s birthday party.

87.In my view, the father’s evidence about his philosophy on negotiations supports the recommendation of Ms A that the living arrangements should be set out in some detail rather than leaving the parties to negotiate in each instance. In my view, a better approach by the father would have been to do what was best for the child without regard to a perceived slight from the mother or a desire to bring home a point to her. Although he might not express it that way, the father risked punishing the child to teach the mother a lesson.

88.In relation to an incident where the mother did not take the child to see his solicitor on 8 May 2014, the mother says that the reason she did not take the child was that the child was upset the night before the appointment. She said he had settled down the next morning, but she still did not take him to the appointment with his lawyer. During cross-examination the mother could not adequately explain why she did not take the boy to see his lawyer. It was put to the father by the mother’s counsel, that the reason could be based on his reaction to the mother’s failure to notify him of the school assembly. The father did not accept that explanation. Improbable as it sounds, I take it then that the mother did not take the child to meet the ICL because she was afraid of the father’s reaction to her taking the child to the ICL without her having notified him of the appointment in advance. In my view, given that the child needed to see his lawyer, the mother could have handled the situation better.

89.A few days later the Legal Aid office contacted the father to find a convenient date for him to bring the child to see the ICL. The father nominated one of the offered times but did not take the child then because the appointment had not been formally confirmed with him. He conceded that he did not follow that matter up with Legal Aid before the nominated time. Again, the child missed out on seeing his lawyer and the father could have handled that better.

90.That sequence of events suggests that this boy will have ongoing problems with his parents. It also suggests that the parents are not entirely focussed on his best interests. I note the compelling observations of Ms A[9] describing the plight of a boy caught trying to please and manage his highly conflicted parents. Ms A referred to the child taking personal responsibility for his parents’ conflict, trying to strategise and solve their problems as if he were the adult. Ms A said that an isolated incident might not be harmful but if there is a pattern of the child parenting his mother and father then that could lead to an adverse outcome for him as he grows, including the risk of depression, anxiety and problems with relationships.

[9] Both in her report and in exhibit 12

91.It is the father’s contention that staff at the before and after school centre have conspired with the wife to falsify centre records to his disadvantage. That seems unlikely. The father conceded that he told the child that the mother’s conduct in one aspect was against God’s law. When asked why he did that, he said something to the effect that he tried to be truthful when talking to the child. The father would have been better saying nothing on that occasion.

92.The father has made attempts to have the mother accept his diagnosis that she has a condition within the autism spectrum. Perhaps that was well-meant and it was probably prompted by his attendance at a program for the partners of those with Asperger’s Syndrome. However, sending her a book about Aspergers for girls, and attaching related material to his affidavit was patronising and importantly, entirely counterproductive. The evidence suggests that the child thinks that one or both of his parents have unusual ‘problems’ and that upsets him.

93.As I have observed, the cases presented by each of the parties are difficult to understand. The evidence relied on and the way in which their cases were presented suggests they each consider that there are serious deficiencies in the parenting capacity of the other. Despite that, the orders they seek make no allowances for those concerns; they propose unsupervised time, for block periods, overnight and with no ordered restrictions on parenting behaviour. 

94.The father was asked about that and the effect of his answer was that although not developed in his affidavit, it is his view that the mother and child have a loving relationship and there are benefits to the child from that relationship. In other words he believes there are positive aspects of the mother child relationship which outweigh the negative elements on which his evidence and submissions almost exclusively focus.

95.The mother too was asked why she persisted in seeking orders for overnight time with the father despite her many complaints about him. She said that many of her complaints against the father are about historical matters and that notwithstanding her affidavit, many of her concerns have diminished. The reason the mother gave for seeking a change in arrangements is that the child finds it hard being away from her for a week at a time.

96.Even with those concessions, the recent confusion over the appointment for the child with the ICL suggests that the child is still being adversely impacted by the way the parents deal and communicate with each other.

97.In relation to the father’s changed application about the child’s time with him, the father said that before the final hearing he had “said goodbye” to the boy. Having clearly formed a view about what should or would happen before the trial started, it is of concern that the father did not announce the new orders sought by him until the last few minutes of a three day hearing. Perhaps more importantly, there is a concern about the impact on the child of that conversation with his father. At best, I assume the child would have been confused by his father’s farewell. Unfortunately the fact of the changed position and of that conversation did not come to light until the very end of the case and the issues arising could not be explored with the expert.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

98.There are no issues about religious or cultural traditions raised in either parent’s case.

99.As to the parents themselves - the father readily acknowledged and volunteered during re-examination, that he is idiosyncratic. That is not the word he used, perhaps quirky or unusual. As I observed to the parties during the father’s evidence, the parents seem very different and together with their lack of trust for and inability to understand each other, one could readily understand why they were unable to maintain their relationship. During the hearing the father’s presentation often included a beaming smile (albeit not noticeably connected with any humorous fact or circumstance), particularly when being addressed and giving evidence. On the other hand the mother maintained a sombre affect. When not in the witness box she generally sat, staring fixedly at nothing in particular. The mother was generally hesitant, reflective and diffident in her responses whereas the father was more confident and apparently sure of himself. At times the father became upset but appropriately so. I must acknowledge that being self represented, the father was on much greater display than the mother. That said, to my observation the father was not fazed by presenting his own case and seemed to appreciate the opportunity to advocate for his position and on behalf of his son and to explain or seek to justify his actions.

100.The child is bright, loving and physically gifted but an anxious child. Ms A reported his tears and upset during their sessions. The father contends that the child is not achieving at an appropriate level academically. The child has the tendencies that lead to him seeing Dr T.

101.Ms A recommended that the child spend four nights a fortnight with the father during school term. The effect of her evidence was that the child enjoys activities with his father and needs to spend time with him but that compared to his time with his mother, time spent in the father’s company is more arduous for the boy. That is not inconsistent with evidence about the child missing his mother when he is away from her for a week at a time. The perception and the likely reality is that the father is more demanding of the child than the mother. The evidence reveals issues in relation to homework, music practice, general discipline, how he packs his school bag, forgetting things etc. being more problematic in the father’s household.

102.The concept arising from Ms A’s evidence is that a better balance for this child would be one where the more intensive experience of time with his father is reduced.

(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

103.This provision does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

104.Although they ascribe responsibility to the other parent, it is common ground that the child has been exposed to the conflict between his parents and to adult issues in an insensitive and inappropriate way. Whatever their respective intentions, the parties have not protected him from the consequences of the breakdown of their relationship.

105.The mother is critical of the father’s lack of paid employment and is worried about the impact of that on the child. The father had paid employment late last year and expressly aspires to return to paid employment, albeit part-time, to fit with his parenting responsibilities.

106.For all that they have made life hard for the child, I have no reason to doubt that these are loving parents who ultimately want nothing but the best for the child. The parents are people of obvious intelligence who have the capacity to adequately discharge the responsibilities of parenthood.

(3)(j) any family violence involving the child or a member of the child's family;

107.There are no orders sought in respect of violence and it follows that, neither of the parties has active concerns that the child will be exposed to violence by the other parent, in the future.

(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or

(ii) the making of the order was contested by a person;

108.There is no relevant order.

(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

109.As presently advised, the primary position of the parents would leave the child living mainly with the mother and either four nights a fortnight or such time as the mother elects, with the father. I take it that an order in that range will satisfy the parents for the time being. That suggests that the need for further proceedings will thereby be minimised.

(3)(m) any other fact or circumstance that the court thinks is relevant.

110.Nothing comes to attention here.

Parental Responsibility

111.Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

112.It is agreed that the parents will have equal shared parental responsibility for the child. As was submitted on behalf of the mother, it appears that the parents hold similar aspirations for the child.

113.An order for shared parental responsibility has the following effect:

SECT 65DAC

Effect of parenting order that provides for shared parental responsibility

(1) This section applies if, under a parenting order:

(a) 2 or more persons are to share parental responsibility for a child; and

(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

(2) The order is taken to require the decision to be made jointly by those persons.

Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

(3) The order is taken to require each of those persons:

(a) to consult the other person in relation to the decision to be made about that issue; and

(b) to make a genuine effort to come to a joint decision about that issue.

(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

114.Presumably that must also apply to equal shared parental responsibility.

115.The presumption that the parents having equal shared parental responsibility would be in the best interests of the child, does apply. Despite the poor relationship between the parents and their problems with communication, the proper order is the order sought by both parents and the ICL, one that places parental responsibility equally with the parents. I will make that order.

Living Arrangements

116.As the Court will make an order that the parties have equal shared parental responsibility, it is necessary to consider equal time and if that is not ordered, substantial and significant time with each parent. Section 65DAA requires that in considering equal time the Court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

117.Neither the mother, the ICL nor the expert proposed an equal time arrangement. As is referred to above, at the conclusion of submissions the father for the first time during the hearing, said that his preferred option was that the child live with the mother and that his time with the father be as agreed between the parents – effectively leaving that issue at the discretion of the mother. Obviously, his primary application would result in the orders proposed by the mother. It would be unusual for the Court to impose a pattern of living arrangements for a child that was not pressed in the first instance by any party or the expert.

118.The father sought the equal time arrangement referred to in his written submissions, only as a fall-back position and in the event that his primary application was not successful.

119.As Ms Christie submitted for the mother, the parties and the child have had the unusual opportunity of experiencing different parenting arrangements since separation. There was a period when the child lived with the mother and had no time with the father. There was a long period where the child lived week about, between the households. Each of the parents is critical of aspects of the existing shared care arrangement. Albeit in different areas, each of the parents is critical of the impact on the child of the existing arrangement. They attribute the cause of the current problems differently but nevertheless highlight the problems suffered by the child.

120.It was submitted on behalf of the mother that the following matters from s 60CC of the Act are relevant in making a determination about living arrangements:

a)The need to protect the child from psychological harm. The mother’s comments and the notes of the after school care service suggest that the child experiences the father as angry. The mother also submitted that the father fails to appreciate the impact of his conduct on the child.

b)The child’s expressed views are cogent and consistent; he has been interviewed three times and on each occasion has asked to spend additional time with his mother. Ms A states in exhibit 12 that the Court ‘should place some weight on his wish[es] and views but could not [rely] on them when determining his optimal care arrangements’.

c)The nature of the child’s relationship with each parent: the mother submitted that the expert evidence suggests this is one of the most significant factors in this case. The child has a good relationship with both parents but feels closer to the mother. Significantly, when asked who he would go to if he felt sad, the child nominated his mother and the maternal grandparents. The mother also referred to Ms A’s evidence that the child is likely to find the father “exacting”, “arduous” and demanding a “high level of intensity”, which is unlikely to be tolerated for long periods of time without complaint.

d)In regards to the facilitation of the child’s relationship with the other parent, the mother submitted that she has facilitated and maintained a week about arrangement for many years.

e)In terms of the effect of change provision, the mother submitted that her orders would not result in a considerable separation between the father and the child and that the child will continue to see the father during school time, leisure time and holiday time.

f)The mother submitted each of the parents is equipped to provide for the child’s intellectual and practical need, however it appears that the mother is more emotionally attuned to the child’s needs and that the father has been assessed by the Family Consultant to be more self-focused and controlling.

g)The mother submitted that the family violence provision was not an essential part of the case, she did not submit that the father had engaged in any conduct post separation of a physically violent nature. The mother however noted that she finds her face to face interactions with the father frightening.

h)The mother submitted it was necessary to consider the parties capacity to implement the proposals of the parties. She suggested that if the child gets a stable home base with his mother, then the need for extensive communication and cooperation between the parties may decrease. She submitted that a continuation of an equal time arrangement would not solve the parties’ communication issues and that fewer opportunities for laborious communication would be positive.

i)It was also submitted that the child would benefit from having any orders made in the case explained to him.

121.Those matters and the fact that, importantly, the parents, the ICL and the expert, not to mention the child, all seek a change from the equal time arrangement suggest that it would not be in his best interests to continue the equal time arrangement.

122.As to whether it would be reasonably practicable, s 65DAA(5) provides:

(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

123.Again, the parents’ primary positions are that there not be an equal time arrangement. The distance between residences is not relevant but the evidence is that communication between the parents has been burdensome and an uneven living arrangement may be easier to manage. Importantly, the evidence is that the child seeks and requires a change in the current arrangement.

124.I find that it would not be in the best interests of the child to continue to impose an equal time arrangement on him. Neither, in my view would it be reasonably practicable to impose such an arrangement.

125.As to substantial and significant time, such an arrangement has the following features:

S 65DAA

(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:

(i) the child's daily routine; and

(ii) occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

126.In my view, all of the proposed arrangements would achieve substantial and significant time between the child and each parent. The proposals of the mother, the ICL and the expert, expressly so and because the mother’s preference is known, through the father’s proposals as well.

127.On that basis, I find that substantial and significant time would be in the best interests of the child and reasonably practicable.

128.As to the particular pattern of time, the proposal of the mother achieves the expert’s recommended outcome of four nights a fortnight with the father and ensures an important connection for father and son during the weekends and school weeks. I will make orders in that format. Going to the father’s preference, I will also provide for the parties to vary the arrangement by agreement.

129.As to school holidays and special days, it follows that I would prefer to specify arrangements, not to stifle the opportunity for flexibility but to prevent negotiations being a chore for the parties and potentially, harmful to the child. If it pleases the parents to make other arrangements, well and good but the orders will provide a framework which should provide a level of certainty and reduce the need for negotiations and thereby, the potential for oppression or conflict.

130.To my observation the proposals of the mother and the ICL for school holidays and special days are substantially the same. I note that the father was taken through the mother’s proposals for special days and, without resiling from his preference for greater flexibility, agreed with the thrust of those proposals. The ICL has some more detail about school holidays that might avoid problems. I will add a wording that identifies the mid-holiday handover arrangement. I will order that the child live:

School holidays

1.For one half of each school holiday period at such times as agreed by the mother and father and in the absence of agreement, the child shall live with the Father during that period for the second half of school holiday periods commencing in an even numbered year, and in the first half of the school holidays periods commencing in an odd numbered year;

2.For the purpose of these orders school holidays are deemed to commence at 3.00 pm on the last day of the preceding school terms and finish at 9.00 am on the first day of the school term on which the child is required to attend school (that is school holidays shall include pupil free days);

3.Unless the parties otherwise agree in school holidays with an even number of days the parent with whom the child is living for the first half of the holidays will deliver the child to the home of the other parent at 6.00 pm on the last day of the first half of the holidays and in school holidays with an odd number of days that parent will deliver the child to the home of the other parent at 6.00 pm on the middle day of the holidays.

4.Those living arrangements are varied in the following circumstances:

Fathers Day

In the even that Fathers Day falls on a weekend when the child is living with the Mother otherwise pursuant to these orders the child shall spend time with the Father from 5.00 pm Saturday (when the father shall collect the child from the Mothers residence) until 5.00 pm Sunday (when the Father shall deliver the child to the mothers residence).

Mothers Day

In the event that Mothers Day falls on a weekend when the child is living with the Father otherwise pursuant to these orders the child’s period with the Father on such weekend shall terminate at 5.00 pm Saturday (when the Father shall deliver the child to the Mothers residence).

24 – 26 December

The child shall spend time with the father from 5.00 pm 24 December each year to 5.00 pm 25 December and shall spend time with the Mother from 5.00 pm 25 December to 5.00 pm 26 December.

Other orders

131.The ICL proposed other orders in relation to notification and related matters. While they are not all agreed, no significant complaint was made about them. They seem sensible and should make life easier for the child. They are:

1.That the mother is to keep the father informed as soon as practicable of:

a.any significant medical problems or illness suffered by the child while in her care;

b.any attendance by the child on a medical practitioner (including the nature of the illness or injury and the proposed treatment):

c.any occasion that the child is due to be hospitalised or has been hospitalised;

d.any medication prescribed for the child;

e.any medication that will require the father to administer such medication; and

f.any change to the mother’s address and telephone contact numbers and the mother’s e-mail address.

2.That the father is to keep the mother informed as soon as practicable of:

a.any significant medical problems or illness suffered by the child while in his care;

b.any attendance by the child on a medical practitioner while in his care:

c.any occasion that the child is due to be hospitalised or has been hospitalised;

d.any medication prescribed for the child;

e.any medication that will require the mother to administer such medication; and

f.any change to the fathers address, the father’s telephone contact numbers and the father’s e-mail address.

3.That the parties are to communicate via e-mail regarding any provision in these Orders; except in the case of an emergency or an unforseen event, where the parties are permitted to communicate via SMS messaging.

132.The ICL’s counsel suggested that the Family Consultant should explain the final orders to the child. I will request that she do so. In light of a concern raised by the father, I will leave to Ms A whether she might speak briefly with each of the parents before doing so.

Conclusion

133.The child is struggling under the current equal time arrangement and it is the primary application of the parents and the child’s lawyer that it be changed. It is agreed that the parents will have equal shared parental responsibility. Arrangements that have the child living with the father four days a fortnight and otherwise, with the mother will meet his best interests.

134.Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording of the orders.

I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 10 July 2014

Associate: 

Date:   10 July 2014